My Turn

On the death penalty,
LESSONS
FROM SOUTH AFRICA

Post-Apartheid, country made forgiveness the priority

Former South Africa's President Nelson Mandela waves, after his arrival for the 6th Annual Mandela Lecture in Soweto, South Africa, Saturday, July 12, 2008. Liberian President Ellen Johnson Sirleaf, is a guest speaker for the Annual Mandela Lecture as part of Mandela?s 90th birthday celebrations. (AP Photo/Themba Hadebe)

Today, as the world follows the highly publicized Oscar Pistorious trial in South Africa, we can marvel at the fact that the oft-addressed “my lady” in those proceedings is a black, female judge. Only two decades ago, it would have been unimaginable for a white man to stand for trial before a black judge. Moreover, then, Pistorious would have been up for the death penalty – a matter of potent significance right now in New Hampshire as the Senate considers repealing the death penalty here.

Twenty-three years ago, I witnessed my country of South Africa on the brink of civil war. For three-and-a-half centuries, the black majority had suffered brutal oppression under colonialism and apartheid. Now, with the untenability of apartheid finally apparent to the ruling minority, the end of racial segregation was finally in view. Amid gross violence by the state, many black South Africans were inclined toward revenge.

Instead, they put down their weapons and forgave.

The Truth and Reconciliation Commission sought to bridge the seemingly unbridgeable divide between victims and perpetrators of unspeakable violence. To demand justice in the sense of “eye for eye and tooth for tooth” was unviable: A compromise had to be made to realize apartheid’s end. At the same time, turning a blind eye to the centuries of racial oppression and suffering my people had undergone was untenable, too. South Africa had to find another way.

At the heart of the TRC process was the celebrated South African principle of ubuntu, personally embodied in moral giants like Nelson Mandela and etched in the very language and customs of my (and other) indigenous groups. The notion that human beings are inextricably linked to one another and that every human life has equal value is not unique to South Africa – but there, in the midst of a simmering civil war, it was put on bold display. As a teenager in Johannesburg, I can vividly recall the televised scenes of confession and forgiveness.

How did the death penalty get implicated? The spirit of reconciliation did not end with the TRC. The laws of crime and punishment had to change as well. Protracted imprisonment (especially for political reasons) and capital punishment had long been the order of the day under apartheid. But the democratically elected government under President Mandela and the newly integrated courts chose a different path. Turning to ubuntu, the Constitutional Court put an end to capital punishment in the case of State v. Makwanyane in 1995. The legal – dare we say moral – reasoning the court employed is worth noting as it applies to New Hampshire’s present debate over the death penalty.

In her concurring opinion, Justice Yvonne Mokgoro invoked South Africa’s newly adopted transitional Constitution as “a bridge between a history of gross violations of human rights and humanitarian principles, and a future of reconstruction and reconciliation.” Quoting the Constitution itself, Mokgoro said, “There is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimization.”

The multiple concurring opinions of other justices described the responsibility of the South African state to set a new example for society. As Justice Pius Langa wrote, “A culture of respect for human life and dignity, based on the values reflected in the Constitution, has to be engendered, and the State must take the lead. In acting out this role, the State not only preaches respect for the law and that the killing must stop, but it demonstrates in the best way possible, by example, society’s own regard for human life and dignity by refusing to destroy that of the criminal. . . . The Constitution, in deference to our humanity and sense of dignity, does not allow us to kill in cold blood in order to deter others from killing. Nor does it allow us to kill criminals simply to get even with them. We are not to stoop to the level of the criminal.”

Fortunately, the United States does not face a civil war like South Africa did in 1994. New Hampshire, to which my husband and I are recently returned from South Africa, is among the safest states in the union. For that we are grateful.

Still, like South Africa under apartheid, the American practice of capital punishment has too often been found to divide American communities along racial and class lines, distinctions we know well. Putting aside America’s challenged past and focusing on the present, studies show that race is still an important factor in deciding who receives the ultimate punishment. According to Time magazine, black defendants are more likely than white defendants to receive the death penalty, and defendants of any race are more likely to be sentenced to death when the victim is white rather than black.

As the American Civil Liberties Union reports, “systemic racial bias in the application of the death penalty exists at both the state and federal level.” What’s more, well over 100 people wrongly convicted of murder have been released from death rows around the country after evidence of their innocence emerged since 1973, according to Amnesty International. Nearly half of those wrongly convicted were black – the largest number of any racial group. As Illinois Gov. George Ryan stated after placing a moratorium on executions in his state in 2000, “The system has proved itself to be wildly inaccurate, unjust, unable to separate the innocent men from the guilty and, at times, a very racist system.”

These facts have been mentioned more than once in New Hampshire’s present debate. What is perhaps not as often mentioned is that, although America rightly affirms the value of human life in many ways, and seeks to export its democratic principles abroad, it is a blot on her record that she stands with China, Iran, and Saudi Arabia as having one of the highest rates of execution in the world. New Hampshire has the chance to take a different course and help build America’s moral authority on the world stage.

Ultimately, to those who say the death penalty should be reserved for the most heinous of crimes, I can say that the people who experienced the brutality of apartheid and lost loved ones in the struggle know something of heinousness. In the coming days, our elected representatives in Concord will decide the future of the death penalty in New Hampshire. I hope they will follow the example of Nelson Mandela, and scores of American heroes of reconciliation, by putting capital punishment to death once and for all.

(Sindiso Mnisi Weeks is completing a book on dispute resolution by informal justice forums in South Africa as a resident scholar at the University of New Hampshire School of Law. She is originally from Johannesburg, South Africa.)